Pham v Commissioner of Victim Rights

Background

1. The factual background giving rise to Mr Pham's appeal is, in very large measure, controversial. It is, however, uncontroversial that on the evening of 13 December 2012 there was an altercation at Mr Pham's home in Yagoona between him and a tradesperson, Mr Kayrouz, who had been carrying out building and construction work on neighbouring premises. Mr Kayrouz had parked his ute in Mr Pham's driveway. There is a dispute as to whether or not he had obtained permission from a female member of Mr Pham's family to do so. Mr Pham had parked his car behind that of Mr Kayrouz, preventing him from driving away.
2. There were a series of 000 telephone calls made by both Mr Pham and Mr Kayrouz that evening. The transcripts were in evidence before NCAT. They present two very different scenarios.
3. Without being exhaustive, the transcript of one of Mr Pham's calls includes the following: "Pham: This guy been driving, threatening us so many times and now he got his car really going right into our house and this … escaping … we can't tolerate this. It's dangerous. It's very dangerous. Operator: What's he doing? Pham: I think he try to get the car right into our house. Operator: Into your driveway? Pham: Not in the drive - right through the door. Even took it very close to the door. Operator: Who is he, do you know? Pham: Oh this guy I don't know. He's … I so strange it a very danger. Operator: Alright. I'll send police …"
4. A second conversation, at 10:40pm is as follows: "Pham: He just come and he just come and hit into our door, danger, very dangerous. Operator: So he came and what sorry, hit on your, he knocked on your door? Pham: He's been waiting the door, no, no he's damaged the door. Operator: He damaged the door did he? Where's he now, is he still there or has he left? Pham: I don't know. He asked me to stay in the home and I don't know what happened out there."
5. On the other hand, a conversation at 9:19pm includes the following: "Kayrouz: Yep. I'm building job there and the boys - every day they park in the neighbour, where my neighbour is they park every day sometimes there and I told them move their car and after the lady come and she tells me fine okay park, park in the side. Operator: Hmm. Kayrouz: We park in the side and today what's happened one of the boys, because they moved the car, they moved my car and put it, they put it on the driveway of that person and it come that person to his house and my car was in the driveway, he tell me you fucken, why is, he tried to, I'm not trying to be smart I said … He tell me oh you put your car here and I told him and he start whinging in the wrong way, he started saying something wrong for me. I told him listen to me, don't speak that language, speak in the right way and I'm going to move my car, I apologise for that. He starts screaming and I come to the car to move it and it was, he put his car behind my car, I'm stuck here for 3 hours. He doesn't move his car, he call the cops police someone coming. Operator: Right. Kayrouz: I can't go home. Everyone left. I'm still a few hours here at the job in his driveway. Operator: Yep. Kayrouz: I can't move my car, I can't move my car. Operator: You can't get out. Kayrouz: When I come to my car he comes all crazy, yeah, yeah, yeah, now I'm out of battery now, I come to my car, I sit in my car and I charge the, I'm not a trouble maker, I never have any problems and his wife she give me the permission to park, she tell me park that way here. Operator: Yep. Kayrouz: They're Chinese. And if I have any record I like one word and the word guy is I think Greek guy or Macedonian guy that why he move my car and I was inside because I have plenty work at the site. I don't realise where my car is, if it's legal, if it block the driveway or it's in the side, in the side. I don't like that. I come and he starts screaming and he's upset. Operator: Okay. And the wife gave you permission did she? Kayrouz: Yeah his wife 100% give me permission, tell me park there, she doesn't, she doesn't speak that much English, she tell me don't park here, or park there, not my car the boys. And the boys move my car and they put it in the driveway before the carpenter."
6. A following conversation at 10:07pm includes this: "Kayrouz: Inside the house and every minute they come and they punch the door from inside and come and … I'm sitting in the car. … Operator: So has the situation changed since 9:30 when you rang us? Kayrouz: No. I'm still … I'm still sitting in the car. He come before 5, … come try to take picture for me I put my head down and he tried to give some other, I don't know, … in the window like I don't know … I don't talk to him."
7. Police eventually arrived at the scene and arrested Mr Pham. The tribunal reproduced the following narrative of the COPS event report as follows (Mr Pham is described as the "POI"): "The victim in this matter is a builder who is currently working on a construction site next to the (address provided) location. Prior to this the victim claims that he had permission from the female occupant of (address provided) to park his vehicle in the driveway of those premises whilst it was unoccupied. On this date the victim did indeed park his vehicle in that driveway believing that he still had permission to leave his vehicle there while he undertook construction next door. About 6:00pm the victim attempted to retrieve his vehicle and return home when he noticed that another vehicle (licence plate provided) was parked hard up behind his own vehicle preventing his exiting. Owing to the shape of the driveway being a battle axe the victim was unable by any other means to remove his vehicle without damaging his or other property. The victim knocked on the door of (the address) and was answered by the POI (Mr Pham), who instantly became very abusive towards the victim. The victim requested that the POI move his vehicle so that he could remove his own but the POI refused angrily. The victim claims that during this time the POI threatened to use a knife against the victim and threatened to kill him, although at no time was the POI seen to wield a knife. Both parties have contacted Police several times throughout the space of about 6 hours. The author acknowledged the job but was unable to attend speedily owing to an onerous workload. The author contacted the POI and advised that there would be a delay, to which the POI repeated that the situation was in his opinion 'very dangerous' and refused to answer further questions, demanding that police attend quickly. The author contacted the victim who advised police that he was waiting for hours for the POI to allow him to remove his vehicle from the premises. He claimed that the POI's aggression towards him had resulted in a female occupant within screaming out to the POI and a younger female also. He stated that he had walked away from the scene fearing a violent confrontation and would wait for police to attend prior to returning. The author contacted the POI and advised that if he removed his vehicle from the driveway the victim would have no further reason to remain at the property, however the POI simply demanded police attend quickly and terminated the call. The author called the POI several times to try and resolve the situation reasonably and calmly, but the POI responded with hostility towards him, terminating calls and making further demands that police attend. The author advised the POI by phone that if the matter should not be resolved by the time of police attendance the POI would be the subject of a police investigation regarding the threats he allegedly issued to kill the victim, which might result in his own arrest. At this, the POI again terminated the call. Eventually police were released for other duties and attended the scene. The author saw that the victim's vehicle was effectively parked in with no other means of being removed as the POI's vehicle had completely blocked all exit. The victim was seen in the vicinity and was asked to remain concealed and remove himself a short distance away. Police knocked on the door and introduced themselves. The POI answered the door and was seen to be highly aggravated. The author asked the POI to move his own vehicle so that the other vehicle could be removed from his driveway to which the POI replied "No. No. No. No. The car stays here". The POI would not listen to reason and despite the author's attempts to peacefully negotiate the removal of the victim's vehicle the POI simply yelled over the top of the author's voice. The author turned to the female occupants to elicit help in removing the vehicle, to which the POI physically took hold of the author's appointment belt by the handcuff holster. The author issued a firm direction to the POI to not touch him, which resulted in the POI letting go. The POI then began yelling in another language towards the female occupants which had the result of causing them to withdraw into the inner rooms of the premises. Fearing that the situation was deteriorating rapidly, and now finding merit in the allegations raised by the victim in relation to the POI's behaviour, the author advised the POI that he was now under arrest on suspicion of intimidation. He was cautioned with all safeguards to section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 applied and adhered to. The POI immediately took a step back and the author seized upon the POI's wrists, who reacted by twisting his torso away. However, he was quickly restrained and led into the rear of the waiting police caged vehicle, being resisted every step of the way. The POI was searched prior to being placed into the caged section, which resulted in the keys to the POI's vehicle being located. When the POI saw that the keys were in the author's hand the POI began yelling loudly in another language towards the house, which resulted in the female occupants exiting to the front and beginning to wail and scream loudly and uncontrollably. The author offered the keys to either female occupant to remove the vehicle, however they both declined. The author thus entered the vehicle and without incident reversed out of the driveway and parked it directly outside the premises, sufficient to allow the victim's vehicle to be removed. The victim removed his vehicle with police remaining nearby to prevent any breach of the peace, parking it onto the street. The victim was asked if he wished to provide a statement to police in relation to this matter. Having regard to the positive outcome the victim placed himself at the disposal of police but apologised that he was very tired, having had to wait at the scene for hours as a result of the POI's actions. He stated that if police requested at a later stage he would happily provide a statement. The victim left the location and the POI was advised that he was no longer under arrest and charges would not be laid on this date. With no other reason to detain him and no further breaches of the peace occurring, the POI was advised that he was free to leave. The POI replied 'No, I'm staying here, you take me to the station and charge me.' The author said 'Get out of the car', to which the POI said 'No.' The author attempted to physically remove the POI from the rear of the caged vehicle, but the POI snatched his hands away, causing a bleeding injury to the author as a result of being cut by the handcuffs. The author took hold of the POI by the clothes and right arm and dragged him from the Police vehicle, with the POI dropping his weight onto the roadway. The POI was pulled onto the footpath and directed to sit down so that the handcuffs could be removed. The POI refused, and as such the author used a 'take-down' manoeuvre to gently place the POI on the footpath. About this time the author noticed that he had a freely bleeding 1cm laceration to his right thumb. The POI yelled out in another language towards the female occupants who then ran towards police also yelling in another language. They were directed to 'get back', with police drawing a cannister of OC spray. This had the desired effect of keeping the females at bay while the POI was able to be un-handcuffed. With the handcuffs removed police attempted to leave the area but were hampered by the POI and the females, who stood in front of police, opened the police passenger door, and stood in front of the police vehicle as it attempted to leave. As the author was suffering an injury which, and the situation having deteriorated due to the POI's incitements, hostility and aggression, police disengaged tactically to consider other options and seek medical attention. The POI was at all times wholly unreasonable and displayed a complete disregard towards police authority. The author will seek to determine what charges if any are to be laid in relation to this matter. Warnings added to vehicle location and POI. Sergeant Campton apprised. Minor cut to thumb of author treated with first aid bandage."
8. Mr Pham claimed that the physical and psychological injuries suffered by him at the hands of police officers that evening sustained his application under the Victims Rights and Support Act. That entitlement turns on there having been an "act of violence", which is defined, relevantly, by s 19(1)-(3) as follows: "19 Meaning of "act of violence" (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. (2) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment. (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence."
9. On 1 June 2017, Mr Pham's application was refused by an Assessor. He applied for internal review, which was repeatedly deferred on Mr Pham's own application in light of civil proceedings commenced by him in the District Court arising from the same incident. Ultimately, a Senior Assessor affirmed the original decision, on 24 July 2018. On 10 August 2018, Mr Pham applied for external review by NCAT. There was a hearing on 5 October 2018 following which NCAT constituted by the Senior Member affirmed the decision: DOD v Commissioner of Victims Rights [2018] NSWCATAD 249.

The decision of NCAT

1. The Senior Member, favourably to Mr Pham, rejected a defence based on s 39 of the Victims Rights and Support Act, at [53]-[55], and no issue was taken with that. The main portion of the Senior Member's reasons was directed to the question of whether Mr Pham's arrest was lawful: at [56]-[81]. The Senior Member considered at some length ss 99 and 105 of LEPRA, doing so both in relation to the institution of the arrest, and when the arrest was discontinued. The Senior Member was satisfied that the arresting police officer complied with s 99, and duly informed Mr Pham of the reason for the arrest, rejecting the account given by Mr Pham. In part that was based upon the Senior Member's assessment of Mr Pham, including at [66]: "While Mr Pham alleges that the COPS Event Report 'is all lies', its description of Mr Pham yelling over the top of the reporting police officer's voice is consistent with his behaviour during the hearing on 5 October 2018. Mr Pham spoke loudly/yelled over the top of my voice on several occasions when I attempted to clarify aspects of his evidence and submissions regarding the issues and he consistently ignored my requests to focus upon the incident on 13 December 2012. It follows that I do not accept his allegation that the narrative 'is all lies'."
2. The Senior Member also had regard to the fact that while both Mr Pham's wife and mother-in-law were said to have witnessed the events of 13 December 2012, and the mother-in-law was present at the hearing, evidence was not adduced from either woman in support of his claim.
3. The Senior Member then stated that in the absence of corroborative evidence and given the unsatisfactory nature of Mr Pham's evidence, she preferred the evidence of the police (including the COPS report) to Mr Pham's evidence. That led to findings, at [72]-[75] as follows: "The evidence that I accept supports a finding that during the period of approximately six hours over which the incident on 13 December 2012 occurred, the other party knocked on the front door of the house and asked Mr Pham to move his car, but he refused to do so. While Mr Pham asserts that he refused because he was "so scared" of the other party and because police told him to wait inside until they arrived, his behaviour caused the situation to escalate to the point where it was necessary for police to attend and intervene to restore the peace. I further note that the 000 Operator issued their advice to Mr Pham based upon the information he provided to them during that phone call, which was to the effect that the other party had "invaded" the property and that he was 'very dangerous'. However, Mr Pham has not alleged that he was the victim of a home invasion or otherwise claimed victims support for any injury that he allegedly suffered because of a home invasion. I am satisfied that after Mr Pham opened the front door upon the arrival of the uniformed police officers, he heard the arresting police officer's instruction that he should move his vehicle to allow the other party to leave the property and he refused to comply with that instruction. I reject his explanation, to the effect that he wanted to keep the evidence in place until the police arrived, as the police had observed the position of the vehicles and instructed Mr Pham to move his vehicle after doing so. It is not a reasonable explanation for his refusal. It follows that I am satisfied that the arresting police officer complied with his obligations under s 99 (1) of LEPRA in deciding to arrest Mr Pham and that he duly informed him of the reason for his arrest."
4. That in turn led to the Senior Member not being satisfied on the balance of probabilities that Mr Pham was the primary victim of an act of violence with respect to his arrest and detention.
5. The Senior Member then turned to the discontinuance of the arrest after the vehicle had been moved and the tradesman had exited the property. The Senior Member said: "In relation to the events that occurred after the arrest was discontinued, I note Mr Pham's explanation that he refused to get out of the police caged vehicle after the arresting police officer told him that he was no longer under arrest, because he believed that he could not make a report to police about the incident unless they took him to the police station. However, in my view that is not a reasonable excuse for his conduct in refusing to exit the vehicle and in refusing to allow the police officer to remove the handcuffs from his wrists. His conduct caused an injury to the arresting police officer, namely a laceration to a thumb. While I note that there are photos of blood stains on Mr Pham's shirt, he alleges that the police officer put his blood 'all over' his body. However, there is no evidence that supports a finding to that effect and I reject that allegation. I further reject Mr Pham's assertions to the effect that he did not resist the arrest and that the police officer beat him because he said that he wished to make a complaint against him. The evidence that I accept does not support them. As a result, I am not satisfied, on the balance of probabilities, that Mr Pham was the primary victim of an act of violence with respect to the events that followed the police officer's decision to discontinue the arrest and release Mr Pham from police custody on 13 December 2012."
6. Mr Pham submits, correctly, that nowhere in her reasons did the Senior Member address s 230 of LEPRA. He further submits that given that the dispute was between a police officer and a civilian, regard to s 230 was "unavoidable" in any legal analysis of what occurred. However, he concedes that at no stage was s 230 explicitly advanced by way of submission on the part of Mr Pham. (The transcript of the hearing was not placed in evidence before me, and I was told that it was not available.)
7. The Commissioner submits that implicit in the reasoning of the Senior Member is a conclusion that the conduct of the arresting officers was not unreasonable.

Consideration

1. Consistently with the approach to fact finding enunciated by the Senior Member, rejecting Mr Pham's evidence and favouring the evidence of the police officers, it is difficult to see how the Senior Member could have found that the police officer's conduct was unreasonable. However, this appeal is confined to questions of law, and the question of whether or not the arresting police officer behaved reasonably is quintessentially one of fact.
2. Moreover, it is difficult to conclude that there would be any error, let alone any error of law, in the Senior Member failing to make a finding directed to s 230 which the Senior Member was not asked to make. So far as may be seen from her reasons, the Senior Member carefully attended to the provisions which appear to have been regarded by the parties as being in play and made findings in accordance with her assessment of the evidence. There is no deficiency in the provision of reasons in failing to deal with a matter that was not raised. Generally, there is no error of law in respect of a point which was not raised: see Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [115]-[118]. There are exceptions to that principle, as is plain from Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, but compliance with s 230 is nothing like the jurisdictional errors which warranted intervention in that case. Consideration of s 230 was not "unavoidable" in the facts of this case. To the contrary, s 230 was apt to present a further obstacle to Mr Pham's entitlement to compensation, one which it was unnecessary for the Senior Member to address.
3. Further, there is with respect a misunderstanding in Mr Pham's submissions based on s 230. The point of s 230 is to authorise conduct which would otherwise be unlawful. If a police officer establishes that he or she has used such force as is reasonably necessary to exercise a function, then the exercise of that function is lawful. As Beazley P put it in State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [230]: "The legislature has expressly made lawful what would or may otherwise be contrary to law, whether criminal or civil. Relevantly for present purposes, s 230 makes lawful action that would otherwise constitute a battery. If Constable Fanning's conduct satisfied the terms of s 230, there was no battery."
4. It does not follow that failing to fall within s 230 means that the conduct of an arresting police officer is unlawful. Still less does failing to fall within s 230 mean that the conduct of the arresting police officer is an offence. Aspects of the written and oral submissions suggest that it may be helpful to elaborate those propositions.
5. First, the laying hands on Mr Pham by an arresting officer was prima facie a trespass to the person. Lawful arrest is a defence to the civil liability he or she would otherwise incur. However, if the police officer satisfied s 230, that is a complete answer to any civil liability. If the police officer did not satisfy s 230, there would remain a question whether some other defence might be available (including, say, under ss 52 and 53 of the Civil Liability Act 2002 (NSW)).
6. Secondly, Mr Pham was seeking to establish injury resulting from the commission of an offence, rather than civil liability. While it is true that if the police officer satisfied s 230, there could be no offence, it does not follow that Mr Pham has established the commission of an offence merely from the fact that s 230 has not been shown to have been satisfied. Let it be assumed that excessive force deployed by the police in discontinuing the arrest (this was at the forefront of Mr Pham's submissions). It does not follow that the police officers were committing an offence. When pressed to identify the offence, Mr Pham eventually identified the offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). But there is a mental element to the offence which needs to be shown before the offence is committed. It is difficult to see how the mental elements of that offence would be made out, consistently with the findings by the Senior Member, irrespective of s 230.
7. There is one further matter. Shortly before the expiry of three years after the events, Mr Pham commenced civil proceedings in the District Court of New South Wales, suing the State of New South Wales on the basis that it was vicariously liable for the tortious conduct of the police officers on the evening of 13 December 2012. There was a trial on 4-7 March 2019, and judgment in favour of the State was given on 29 March 2019: Pham v State of New South Wales [2019] NSWDC 73. The trial and the judgment post-date the hearing before the Senior Member. Nonetheless, Mr Pham sought to rely upon the much fuller factual inquiry that occurred in the District Court in support of his appeal. It is true that each of Mr Pham and the arresting police officers gave evidence and were cross-examined before the primary judge. So too did his mother-in-law, Ms Dinh. The primary judge rejected Mr Pham's version of events and accepted the arresting officer's version of events, which corroborated the COPS report. His Honour stated that "neither Mr Pham nor Ms Dinh were credible witnesses": at [75], while both officers were "impressive witnesses": at [86]. His Honour made an express finding that s 230 was complied with and that the force used by the arresting officer in the process of arresting and searching Mr Pham was lawful and constituted neither an assault nor battery: at [123]. Further, his Honour made an express finding that there was no assault or battery when Mr Pham was removed from the police van: at [124]-[125].
8. The Commissioner submitted that the judgment not having been before the Senior Member, was not relevant to this appeal. But evidence which is not relevant to an appeal may nonetheless be relevant on the question of leave. For example, evidence post-dating a decision the subject of an application for leave to appeal, going to futility or alternatively the general importance of the issue, may be relevant to leave but irrelevant to the appeal.
9. The fact that Mr Pham has now enjoyed a full hearing, including the cross-examination of the arresting police officers, is a further reason telling against the grant of leave.

Orders

1. For those reasons, I would refuse leave to appeal and dismiss the amended summons filed on 17 April 2019. Costs must follow the event.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2019